Products Liability Law Daily Massachusetts not a convenient forum for Fukushima nuclear disaster litigation, First Circuit affirms
Monday, April 27, 2020

Massachusetts not a convenient forum for Fukushima nuclear disaster litigation, First Circuit affirms

By David Yucht, J.D.

Although claims against General Electric could not be brought in Japan based on controlling law, there were several avenues for redress against the Tokyo Electric Power Company, which operated the Fukushima nuclear plant.

A federal district court did not abuse its discretion in ruling that Massachusetts was not a convenient forum for a lawsuit concerning the Fukushima Daiichi Nuclear Power Plant disaster and that an adequate alternative forum was available for resolving this matter in Japan, the U.S. Court of Appeals for the First Circuit held. Consequently, the lower court order dismissing this case was upheld (Imamura v.General Electric Co., April 24, 2020, Torruella, J.).

Four individuals and six business entities from Fukushima Prefecture in Japan brought this proposed class action against General Electric Co. (GE) seeking monetary damages for property damage and economic harm caused by the 2011 tsunami and resulting nuclear disaster at the Fukushima Daiichi Nuclear Power Plant (FNPP). Claiming that GE negligently designed the plant’s nuclear reactors and safety mechanisms, they sued individually and on behalf of putative classes of over 150,000 persons and hundreds of businesses that suffered property damage or economic injury as a result of the disaster. They alleged many problems with GE’s design of the plant, including lowering the bluff over the ocean where the plant was built to reduce costs; placing the emergency generators and seawater pumps in a building basement without protection against flooding; not ensuring a backup power source in case the generators failed; and not including space to accommodate sufficient emergency equipment. The district court granted GE’s motion to dismiss based on forum non conveniens [see Products Liability Law Daily’s April 9, 2019 analysis]. This appeal was subsequently filed.

Forum non conveniens. Finding that the district court did not abuse its discretion in determining that the judicial and administrative compensation schemes available in Japan rendered that nation an adequate alternative forum, the First Circuit upheld the district court’s finding that there was an adequate remedy available in Japan. Forum non conveniens permits dismissal of a case when "an alternative forum is available in another nation which is fair to the parties and substantially more convenient for them or the courts." The Japanese entities’ argument here was that because Japanese law channeled all liability for damages claims relating to the FNPP disaster to Tokyo Electric Power Co. (TEPCO)—which was strictly liable in Japan—there was "no forum in Japan, judicial or otherwise" that permitted them to pursue claims against GE. Accordingly, the district court's determination that Japan was an available forum was a "misapplication" of forum non conveniens, which stripped them of their "inherent right" to seek recovery from the party of their choosing, and gave GE "blanket immunity" for its role in the disaster, the plaintiffs contended.

Generally, an alternative foreign forum is available if the forum can exercise both personal jurisdiction over an entity being sued as well as subject matter jurisdiction over the dispute.

Here, GE conceded that it was subject to personal jurisdiction in Japan. The First Circuit noted that although GE was technically amenable to suit in Japan, Japanese law, in this particular situation, prevented recovery from GE. However, there were three other adequate avenues for compensation in Japan: (1) direct claims filed with TEPCO; (2) claims against TEPCO through an Alternative Dispute Resolution (ADR) Center; and (3) damages lawsuits against TEPCO. The First Circuit opined that forum non convenienswas not improper when the alternative forum offered adequate remedies for the exact same injuries alleged in U.S. court but channeled liability for those injuries to a third party who was not sued in the U.S. case. Because the Japanese courts would allow the Japanese entities the possibility of obtaining" full and fair compensation," there was no meaningful absence of jurisdiction.

The court found that the fact that over 2,000,000 claimants had filed for compensation directly with TEPCO, and that almost 25,000 had done so through the ADR Center, demonstrated that the process in Japan was not too complex for class members to secure an adequate remedy.

The case is No. 19-1457.

Attorneys: Bonnie L. Dixon (Atsumi & Sakai) for Shinya Imamura. Yalonda T. Howze (Mintz Levin Cohn Ferris Glovsky & Popeo PC) for General Electric Co.

Companies: General Electric Co.

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